The Chief Kaitiff Plans a Purge

Regular readers of this site will not be surprised by the announcement from the Presiding Bishop of her intentions to bring a resolution to depose the Rt. Rev. Robert Duncan of Pittsburgh at the forthcoming fall meeting of the House of Bishops at Salt lake City. (A big tip of the Rumpolean bowler to Greg Griffith at StandFirm for making it available in advance.)

What may yet come as a surprise to some, however, is the brazenness with which the Presiding Bishop has laid out her plans in advance. She is without shame: she has announced to the House of Bishops, five days ahead of their meeting, the parliamentary rulings she will make on the canonical objections to proceeding with the resolution, and she lays out her specious, the-end-justifies-the-means reading of Canon IV.9 so there can be no mistake. (I had predicted such rulings would be made, but at the meeting itself---not five days in advance! I hope there will be some stalwart bishops present who will make the only response to such tyranny that can be made, and who by their departure will deprive those remaining of a quorum.)

The Presiding Bishop is a tyrant in episcopal garb. The tragedy is that she is aided and abetted in this power grab by so many Episcopal jurists, who now must be dubbed "soi-disant jurists."

(An aside: Up until now on this blog, I have striven to maintain the utmost civility and respect toward the Presiding Bishop, always addressing her by her proper title and name. With this latest dastardly and cowardly ukaze from her hand, however, I am forced to join the ranks of so many others who have lost their respect for her. From this point forward, I shall address her as: "The Chief Kaitiff of The Episcopal Church.")

The Chief Kaitiff first attempts to justify her crime against Canon IV.9 by summoning the support of her soi-disant jurists:

At this meeting there may be raised the question whether, under Canon IV.9, the House may proceed to grant or withhold its consent to Bishop Duncan's deposition on the ground that the three senior bishops have not consented to his inhibition. It is the position of my Chancellor, after reviewing the apparent intent of the canon and consulting several other chancellors and former chancellors, as well as the opinion of the Parliamentarian of the House, that the General Convention in enacting this canon did not intend to give the three senior bishops a "veto" over the House's right to determine whether or not a bishop who has been certified by the Review Committee as having abandoned the Communion of this Church should be deposed. Rather, that decision was intended to be made by the House. The consent of the three senior bishops, they opine, was intended to be sought only on the matter of whether or not the bishop in question should be inhibited pending the proceeding before the House, and that any ambiguity in the language of the canon should be resolved in favor of the ability of the House itself to vote on this matter. In their view, and in the language of the canon, it is my "duty ... to present the matter to the House of Bishops" regardless of whether the bishop in question has been inhibited.

I concur with this advice, and that will be the ruling of the Chair. Any member of the House may appeal the ruling of the Chair, which may be overruled by a two-thirds vote pursuant to House Rule XV, p.192.

Notice that the Chief Kaitiff, in deriving the "intent" of the General Convention, quotes very little of the language of the Canon itself. That is because the language is far from ambiguous, and indeed is quite clear. To make this point, I reproduce it below in a format designed to bring out how the sentences and paragraphs relate to each other:

CANON IV.9: Of Abandonment of the Communion of This Church by a Bishop

Sec. 1. If a Bishop abandons the communion of this Church

(i) by an open renunciation of the Doctrine, Discipline, or Worship of this Church, or

(ii) by formal admission into any religious body not in communion with the same, or

(iii) by exercising episcopal acts in and for a religious body (other than this Church or another Church in communion with this Church),

so as to extend to such body Holy Orders as this Church holds them, or

to administer on behalf of such religious body Confirmation without the express consent and commission of the proper authority in this Church;

it shall be the duty of the Review Committee, by a majority vote of All the Members, to certify the fact to the Presiding Bishop and with the certificate to send a statement of the acts or declarations which show such abandonment, which certificate and statement shall be recorded by the Presiding Bishop.

The Presiding Bishop, with the consent of the three senior Bishops having jurisdiction in this Church, shall then inhibit the said Bishop until such time as the House of Bishops shall investigate the matter and act thereon.

During the period of Inhibition, the Bishop shall not perform any episcopal, ministerial or canonical acts, except as relate to the administration of the temporal affairs of the Diocese of which the Bishop holds jurisdiction or in which the Bishop is then serving.

Sec. 2. The Presiding Bishop, or the presiding officer, shall forthwith give notice to the Bishop of the certification and Inhibition.

Unless the inhibited Bishop, within two months, makes declaration by a Verified written statement to the Presiding Bishop, that the facts alleged in the certificate are false or utilizes the provisions of Canon IV.8 or Canon III.12.7, as applicable, the Bishop will be liable to Deposition.

If the Presiding Bishop is reasonably satisfied that the statement constitutes

(i) a good faith retraction of the declarations oracts relied upon in the certification to the Presiding Bishop or

(ii) a good faith denial that the Bishop made the declarations or committed the acts relied upon in the certificate,

the Presiding Bishop, with the advice and consent of a majority of the three senior Bishops consenting to Inhibition, [shall] terminate the Inhibition.

Otherwise, it shall be the duty of the Presiding Bishop to present the matter to the House of Bishops at the next regular or special meeting of the House.

If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent, the Presiding Bishop shall depose the Bishop from the Ministry, and pronounce and record in the presence of two or more Bishops that the Bishop has been so deposed.

Notice that there is not the slightest ambiguity in how the Canon is laid out: Section 1 deals with what happens from the time that an "abandonment" is certified to the Presiding Bishop through the period of inhibition, until the matter is taken up by the House. Section 2 deals with the disciplining of the inhibited bishop by the House of Bishops. It makes this crystal clear when it begins with the language: "Unless the inhibited Bishop . . ."

Thus there can be no deposition of a bishop who has not been first inhibited. Again, as section 2 unambiguously states, only "the inhibited Bishop . . . will be liable to deposition."

It is a gross and fallacious misreading of the Canon to opine that "General Convention . . . did not intend to give the three senior bishops a 'veto' over the House's right to determine whether or not a bishop who has been certified by the Review Committee as having abandoned the Communion of this Church should be deposed." The giveaway to the speciousness of this logic is the fact that the Chief Kaitiff places the word "veto" in quotation marks, and thereby gives the lie to the fact that what the three senior bishops exercise is not in fact a veto, but only a check on what otherwise would be the unbridled power of the Presiding Bishop to bring before the House resolutions of deposition without a trial. There is no "veto", because the Title IV Review Committee or the Presiding Bishop may, if they choose, bring a presentment against the offending bishop---but then, of course, there would have to be a trial.

I have dealt with with this misreading of the Canon in earlier posts here and here, and shall not dwell on it further. The language is clear, and to call it "ambiguous" for the sake of introducing your own specious interpretation of it is to violate the most fundamental precept of statutory construction: "If the language is unambiguous, we must presume that the Legislature meant what was said and give effect to the statute's plain meaning." (Quote taken from Searles Valley Mineral Operations, Inc. v. State Board of Equalization [2008] 160 Cal.App.4th 514, 521.)

The Chief Kaitiff is not finished with her usurpation of power, however. She announces in advance that it is also unnecessary that a "majority of the whole number of Bishops entitled to vote" be present and vote at the meeting; instead, a bare quorum will suffice. Once again, she appeals to the outcome she wants to achieve as a justification for misreading the Canon:

Canon IV.9(2) states that the vote to consent must, first, take place at a "regular or special meeting of the House" and, second, be "by a majority of the whole number of Bishops entitled to vote." My Chancellor and the Parliamentarian of the House have both advised me that the canon means that the vote must be by a majority of all the bishops who are at the meeting at which the vote must be taken and who are entitled to vote. Their view is based on their conclusion that the language of the canon may be ambiguous, but that it should be interpreted to give practical effect to the stated direction by the General Convention that the vote must be taken at a meeting ofthe House. This direction differs from other provisions in the Constitution and the canons where votes by a majority of all the members of the House are required but that voting may be by ballot---Art. II.6 (consent to resignation of bishops); Canon IV.3(21)(c) (consent to doctrinal presentment of bishops). The Chancellor has informed me that this canon was amended in the 1870s and again in 1904 to make clear that the vote had to be taken at a meeting of the House, presumably so that all who would vote on such an important matter could hear the factual presentations and arguments on both sides of the question. He also has pointed out that by 1904 the number of members of the House who were not entitled to vote was growing, as suffragan bishops, whose election and ordination were being permitted for the first time in our history, were nevertheless not given the right to vote in the House until the 1940s.

I have already presented a thorough history of the voting language in Canon IV.9 here, here, and here, and shall refer the patient reader to those posts for the details that refute the argument just quoted. (I also showed here why the change in the language between 1874 and 1904 was not a substantive change in meaning, so her Chancellor's argument purporting to derive significance from the change is hogwash.) However, there are some new grounds put forward to which a response needs to be made.

The Chief Kaitiff and her soi-disant jurists contend that there are instances in which the Constitution and Canons allow votes to be taken by ballot, without a meeting of the House as such, but that the language of Canon IV.9 was "amended . . . to make clear" that a vote on the deposition of a Bishop had to occur at a meeting of the House. It is very curious that they would cite to Article II, section 6 of the Constitution on this point, which provides simply that a Bishop may resign jurisdiction only with the consent of the House of Bishops. It is Canon III.12.8(d) that implements this provision, and it provides as follows: "The House during its session shall accept or refuse the resignation by a majority of those present." (Italics and bold added for emphasis.) So not only must a resignation from a Bishop be accepted during a session of the House of Bishops, but the Canon expressly permits it to be accepted by a "majority of those present," in clear language that is distinctly different from "a majority of the whole number of Bishops entitled to vote." But according to the Chief Kaitiff, backed by her sycophant lawyers and soi-disant jurists, the language in both instances means exactly the same thing.

The second reference, to Canon IV.3.21 (c), is just as puzzling, since it again shows how language can clearly be used to express the same concept as is expressed in Canon IV.9. The Canon in question deals with the proceedings in the case of presentments against Bishops. After the charges and any answer thereto have been circulated to the whole House of Bishops, the Canon provides:

The written consent of one-third of the Bishops qualified to vote in the House of Bishops shall be required before the proceeding may continue. In case the Presiding Bishop does not receive the written consent of one-third of all the Bishops eligible to vote within sixty days of the date the notification by the Presiding Bishop was sent to them, the Presiding Bishop shall declare the Presentment dismissed and no further proceedings may be had thereon.

Here there is no meeting of the House called for, it is true; but look at the requirement for a presentment to go forward: the "written consent of one-third of the Bishops qualified (eligible) to vote in the House of Bishops." And how, pray tell, does that language differ in intent from "the whole number of Bishops entitled to vote"? Do not the words qualified, eligible and entitled all signify the same Bishops---the ones who have a seat and a vote in the House? Yet according to the Chief Kaitiff and her minions, the former means all Bishops entitled to vote, whether retired, or present, or not, while the latter means just the (mostly active) Bishops who actually show up for a given meeting.

There now begin very dark days for The Episcopal Church. Do not let the satire and bite of an old curmudgeon, which is intended only to provoke readers into thinking about what is actually happening before their eyes, deter you from praying for her, and for her leaders. (A good site to visit for that purpose is Lent & Beyond.) Yes, pray especially for Katharine Jefferts Schori, whom I would be glad to be able to respect once again, if she would renounce her tyrannical ways.

For the present ordeal, however, I shall keep company with the prophets of dire times to come, and close with these verses from the Book of Habbakuk:

1:12 Lord, you have been active from ancient times;

my sovereign God, you are immortal.

Lord, you have made them your instrument of judgment.

Protector, you have appointed them as your instrument of punishment.

1:13 You are too just to tolerate evil;

you are unable to condone wrongdoing.

So why do you put up with such treacherous people?

Why do you say nothing when the wicked devour those more righteous than they are?